In Re Estate of Barriero

[765]

THOMPSON, J.

This appeal is from a decree of partial distribution by the three minor children of the deceased and by the executor of the last will and testament of Benigno Barreiro, deceased. The respondent is the mother of the children and the divorced wife of decedent. She petitioned the court for a partial distribution of the estate, which the court ordered. By the will of decedent all of his estate was devised and bequeathed to the three children. The respondent asserted her right to take one-half of the estate, claiming that the property was the community property of herself and deceased. By stipulation of all the parties all the property of the estate, other than 1,000 shares of the capital stock of a Mexican corporation known as the Compañía de Inversiones de la Baja California, S. A., appraised at $500,000, was expressly excluded from the scope of the application and the hearing. The court found that of the 1,000 shares, one-fifth, or $100,000 worth, was separate property, and that the remainder was community property. In arriving at this result the court found that two parcels of real property which had been owned by the deceased at the time of his marriage and continuously thereafter until transferred to the company, in exchange for a portion of the capital stock, had during the marriage relation been improved with buildings, and that due to the fact that “no evidence or proof” was “adduced establishing or showing that said improvements were made or paid for with the separate funds of said decedent” the improvements were presumptively community property. The improvements so found to partake of the character of community were valued at the sum of $55,000.

Appellants contend that the improvements as a matter of law constitute a part of the separate estate of decedent, and that this court should either modify the decree by adding to the sum of $100,000 the sum of $55,000 or instruct the trial court to amend the conclusions of law and the decree to the same effect.

Inasmuch as appellants assert that fixtures attached to the separate real property take on the character of the land and become separate estate also, the respondent argues that they are not seeking to recover any part of the realty, but only seeking to have distributed to the widow one-half of the portion of the capital stock of the company found